UNITED STATES COURT of APPEALS ARGUED: David E

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Rapanos, et al. No. 03-1489

ELECTRONIC CITATION: 2004 FED App. 0239P (6th Cir.) File Name: 04a0239p.06 ______COUNSEL UNITED STATES COURT OF APPEALS ARGUED: David E. Dearing, Indianapolis, Indiana, for FOR THE SIXTH CIRCUIT Appellants. Katherine W. Hazard, UNITED STATES ______DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: David E. Dearing, Indianapolis, UNITED STATES OF AMERICA, X Indiana, for Appellants. Katherine W. Hazard, UNITED Plaintiff-Appellee, - STATES DEPARTMENT OF JUSTICE, Washington, D.C., - for Appellee. - No. 03-1489 v. - ______,> JOHN A. RAPANOS; JUDITH A. OPINION - ______NELKIE RAPANOS; PRODO, - INC.; ROLLING MEADOWS - DANNY C. REEVES, District Judge. Plaintiff-Appellee HUNT CLUB; PINE RIVER - United States brought suit against the Defendants pursuant to - the Federal Water Pollution Control Act Amendments of BLUFF ESTATES, INC., - Defendants-Appellants. 1972, Pub. L. No. 92-500, 86 Stat. 817, as amended 33 U.S.C. - § 1251 et seq., commonly known as the Clean Water Act N (“CWA”). Defendants-Appellants John Rapanos, Judith Appeal from the United States District Court Rapanos, Prodo, Inc., Rolling Meadows Hunt Club, and Pine for the Eastern District of Michigan at Detroit. River Bluff Estates, Inc. appeal the district court’s entry of No. 94-70788—Bernard A. Friedman, Chief District Judge. judgment in favor of the United States. Prodo, Inc., Rolling Meadows Hunt Club, and Pine River Bluff Estates, Inc. are Argued: June 9, 2004 wholly owned by John and Judith Rapanos. For the reasons discussed below, we AFFIRM the judgment of the district Decided and Filed: July 26, 2004 court.

Before: SILER and GIBBONS, Circuit Judges; REEVES, BACKGROUND * District Judge. The Rapanos, through their wholly-owned companies, owned various parcels of land in Bay, Midland, and Saginaw Counties in Michigan. These parcels are known as the Salzburg, Hines Road, Pine River, Freeland, Mapleton, and Jefferson Avenue sites. The Rapanos were charged with * The Honorable Danny C. Reeves, United States District Judge for illegally discharging fill material into protected wetlands at the Eastern District of Kentucky, sitting by designation.

1 No. 03-1489 United States v. Rapanos, et al. 3 4 United States v. Rapanos, et al. No. 03-1489 these sites between 1988 and 1997. The United States alleges When Mr. Rapanos refused to comply with an administrative that the Rapanos attempted to fill these wetlands to make the compliance order issued by the Environmental Protection land more conducive to development. Agency (“EPA”) (requiring him to immediately cease his filling of the Salzburg site), the EPA referred the matter to the I. The Salzburg Site Department of Justice. Before filling wetlands subject to CWA jurisdiction, a II. The Hines Road Site landowner must first obtain a permit from the Army Corps of Engineers (“Corps”). 33 U.S.C. § 1344. In December 1988, The Defendants undertook to expand drains, build roads, John Rapanos asked the state to inspect the Salzburg site in and fill the wetlands at the Hines Road site. However, in July hope of obtaining a permit to construct a shopping center at 1992, the state issued a cease and desist letter to stop the this location. The state informed him that the site was likely ongoing activity. Mr. Rapanos did not reply to this letter. a regulated wetland and sent him an application for the Thereafter, the state conducted an examination of the site necessary permits. A state representative toured the site in pursuant to a search warrant in June 1994. In June 1997, the March 1989, noting that the site probably contained wetlands state returned to the site and noted that fill had been added to but could be developed if the necessary permits were issued. certain areas since the 1994 search. Accordingly, the EPA Mr. Rapanos hired a consultant, Dr. Goff, to prepare a report issued an administrative compliance order. The EPA alleges detailing the wetlands on the Salzburg site. Dr. Goff that Mr. Rapanos did not comply with this order. concluded that there were between 48 and 58 acres of wetlands on the site, presenting his findings in the form of a III. The Pine River Site report and a map. Upset by the report, Mr. Rapanos ordered Dr. Goff to destroy both the report and map, as well as all Mr. Rapanos also hired contractors at the Pine River site to references to Mr. Rapanos in Dr. Goff’s files. However, Dr. construct ditches, spread dirt and sand, construct roads, and Goff was unwilling to do so. Mr. Rapanos stated he would clear vegetation. The state sent Mr. Rapanos a cease and “destroy” Dr. Goff if he did not comply, claiming that he desist order after an official observed that portions of the would do away with the report and bulldoze the site himself, wetlands had been filled. The EPA issued an administrative regardless of Dr. Goff’s findings. compliance order in September 1997 after Mr. Rapanos refused to comply with the cease and desist order. The EPA In April 1989, workers began leveling the ground, filling in alleges that Mr. Rapanos also did not comply with the low spots, clearing brush, removing stumps, moving dirt, and administrative order. dumping sand to cover most of the wetland vegetation. This activity caused Dr. Goff to note that the site now looked “like IV. The Criminal Proceedings nothing more than a beach.” In August 1989 the state attempted to inspect the Salzburg site, but was denied access. Criminal charges were brought simultaneously with the Three months later, authorities from the state returned, armed instant civil action. In July 1994, the district court declared with a search warrant. a mistrial in Mr. Rapanos’ criminal trial. The trial was moved to Flint, Michigan and, on March 7, 1995, the jury in the In 1991, a state representative returned to the Salzburg site, second trial returned a guilty verdict on two counts. United noting that the site had been “tiled” to drain subsurface water. States v. Rapanos, 895 F.Supp. 165, 166 (E.D. Mich. 1995). No. 03-1489 United States v. Rapanos, et al. 5 6 United States v. Rapanos, et al. No. 03-1489

Following trial, the district court granted Rapanos’ motion for Rapanos’ petition for a writ of certiorari. Rapanos v. United a new trial, finding that the court had improperly allowed the States, 124 S. Ct. 1875 (2004). United States to pursue a line of questioning that was prejudicial to the defendant. Id. at 169-70. This court, V. The Civil Proceedings however, determined that the line of questioning was not improper and reversed the district court’s grant of a new trial The United States initiated this civil action in February and remanded for sentencing. United States v. Rapanos, 115 1994, confining its scope to the Salzburg site and naming F.3d 367, 374 (6th Cir. 1997). The district court sentenced only Mr. Rapanos as a defendant. In June 1996, the United Rapanos to three years probation and ordered him to pay a States added Mrs. Rapanos to the complaint, as well as Prodo, $185,000 fine. On appeal, this court affirmed the conviction Inc., a company owned by Mr. Rapanos. In February 1998, but remanded for resentencing. United States v. Rapanos, the United States amended its complaint to add allegations 235 F.3d 256, 261 (6th Cir. 2000). concerning the Hines Road and Pine River sites. Pine River Bluffs Estates was also added as a defendant. The Supreme Court granted Rapanos’ request for a writ of certiorari, vacating and remanding this court’s order in light Following a 13-day bench trial, the district court concluded of Solid Waste Agency of Northern Cook County v. United that Rapanos had filled 22 of 28 acres of protected wetlands States Army Corps of Engineers, 531 U.S. 159 (2001) at the Salzburg site, 17 of 64 acres of protected wetlands at (“SWANCC”). Rapanos v. United States, 533 U.S. 913 the Hines Road site, and 15 of 49 acres of protected wetlands (2001). Following remand from the Supreme Court, this at the Pine River site. The district court concluded that the court remanded the case to the district court for further government had established that 54 of the filled acres fit the consideration. United States v. Rapanos, Nos. 98-2424, 99- three parameters for wetlands, i.e., vegetation, soils, and 1578, 99-1074, 16 Fed. Appx. 345 (6th Cir. 2001). On hydrology. In addition, the court found that the United States remand, the district court set aside the conviction, finding that did not meet its burden regarding the existence of wetlands at the Freeland and Mapleton sites. The district court entered the United States lacked jurisdiction in the wake of the 2 Supreme Court’s ruling in SWANCC. United States. v. these findings and conclusions on March 22, 2000. Rapanos, 190 F.Supp. 2d 1011 (E.D. Mich. 2002). On appeal, this court reversed the order of the district court, STANDARD OF REVIEW reinstated the previous conviction and remanded to the district court for resentencing. United States v. Rapanos, 339 F.3d Following a bench trial, this court reviews the district 447, 454 (6th Cir. 2003). A panel of this court determined court’s findings of fact for clear error and reviews its that, despite the Supreme Court’s decision in SWANCC, the conclusions of law de novo. Pledger v. United States, 236 United States retained jurisdiction over the wetlands at issue F.3d 315, 320 (6th Cir. 2000). Factual determinations of a by virtue of the CWA.1 Recently, the Supreme Court denied trial court are not clearly erroneous unless we are “left with the definite and firm conviction that a mistake has been

2 On January 10, 2003, after the Supreme Court overturned the 1 The land at issue in the criminal trial was the Salzburg site. The “Migratory Bird Rule” as an excessive extension of jurisdiction under the Salzburg site in the criminal trial is somewhat different than the Salzburg CWA in SWANCC, the district court amended its findings to remove all site involved in this proceeding. references to the “Migratory Bird Rule” as a basis for federal jurisdiction. No. 03-1489 United States v. Rapanos, et al. 7 8 United States v. Rapanos, et al. No. 03-1489 committed.” Id. (quoting Anderson v. City of Bessemer City, Supreme Court and this court have noted that “Congress 470 U.S. 564, 573 (1985)). “If the district court’s account of chose to define waters covered by the Act broadly” in the the evidence is plausible in light of the record viewed in its CWA. Riverside Bayview, 474 U.S. at 133; Rapanos, 339 entirety, the court of appeals may not reverse it even though F.3d at 450-51. Determining the precise boundary of which convinced that had it been sitting as the trier of fact, it would waters are covered by the CWA has been difficult. It is well- have weighed the evidence differently.” Anderson, 470 U.S. settled that the CWA covers more than what has come to be at 573-74. known as “navigable in fact waters,” i.e., waters that can be navigated in the traditional sense. See id. at 451. As the DISCUSSION Supreme Court has noted, CWA jurisdiction extends beyond traditionally navigable waters because economic activities On appeal, Rapanos argues that the district court erred affecting interstate commerce are susceptible to when it (1) held that the disturbed wetlands were adjacent “congressional regulation under the Commerce Clause wetlands because they had a surface connection to waters of irrespective of whether navigation, or, indeed, water, is the United States; (2) failed to make subsidiary findings to involved.” Kaiser Aetna v. United States, 444 U.S. 164, 174 support its conclusion that the Salzburg, Hines Road, and (1979). Pine River sites had a hydrological connection to navigable waters; (3) allowed plaintiff’s expert Dr. Willard to testify; The CWA’s broad reach, extending beyond traditionally (4) failed to consider Michigan’s definition of “wetland”; navigable waters, however, does not extend to all waters. The (5) collaterally estopped Rapanos from denying liability at the Code of Federal Regulations contains the Corps’ Salzburg site; and (6) relied on Dr. Willard’s testimony to interpretation of which waters are properly considered determine the extent of unauthorized filling. “waters of the United States.” 33 C.F.R. § 328.3. In the present case, the district court relied on the Corps’ exercise of I. The CWA jurisdiction over “wetlands adjacent to traditional navigable waters” as supporting CWA jurisdiction for the Defendants’ In 1972, Congress reacted to the problem of water pollution lands. Id. at § 328.3(a)(7). It found that the wetlands were by enacting the CWA. The CWA is viewed by some as the adjacent to tributaries of traditional navigable waters. The federal government’s main weapon in its effort to protect Corps asserts jurisdiction over such waters pursuant to the wetlands. David Dornak, A New Generation is Teeing Off: Is CWA. Id. at §§ 328.3(a)(5), 328.3(a)(7). Tiger Woods Making Divots on Environmentally Sound Golf Courses?, 23 Colum. J. Envtl. L. 299, 324 (1998). Section Determining which wetlands are considered “adjacent to” 404 of the CWA requires landowners to obtain permits from traditional navigable waters or their tributaries has proved to the Army Corps of Engineers (“Corps”) before discharging be a complication in defining CWA jurisdiction. The Code fill material into wetlands adjacent to navigable bodies of of Federal Regulations states that “adjacent” means water and their tributaries. United States v. Riverside “bordering, contiguous, or neighboring. Wetlands separated Bayview Homes, Inc., 474 U.S. 121, 123 (1985); see also from other waters of the United States by man-made dikes or 33 U.S.C. § 1344. barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’” 33 C.F.R. § 328.3(c). “Navigable waters” are defined as “waters of the United States, including territorial seas.” 33 U.S.C.§ 1362(7). The No. 03-1489 United States v. Rapanos, et al. 9 10 United States v. Rapanos, et al. No. 03-1489

In order to invoke federal jurisdiction the wetlands must Next, the Court addressed the issue of which waters could bear some connection to navigable waters or interstate be considered “adjacent to navigable waters.” commerce. Determining how much of a connection is necessary has proven difficult. Unfortunately, the two In determining the limits of its power to regulate leading Supreme Court cases on the reach of the CWA have discharges under the Act, the Corps must necessarily done little to clear the muddied waters of CWA jurisdiction. choose some point at which water ends and land begins. Our common experience tells us that this is often no easy A. Riverside Bayview task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, Riverside Bayview Homes owned 80 acres of low-lying, between open waters and dry land may lie shallows, marshy land near the shores of Lake St. Clair in Macomb marshes, mudflats, swamps, bogs -- in short, a huge array County, Michigan. It began filling part of the land with the of areas that are not wholly aquatic but nevertheless fall intention of constructing a housing development on the site. far short of being dry land. Where on this continuum to The Corps determined that the land was an “adjacent find the limit of “waters” is far from obvious. wetland,” thus falling under the ambit of the CWA. The district court determined that the land on the site below 575.5 Id. at 132. feet above sea level was a wetland requiring the issuance of a permit before it could be filled. Riverside Bayview, The Court concluded that to protect against pollution “at its 474 U.S. at 125. This court reversed the district court, source,” Congress sought to define coverage of the CWA concluding that adjacent wetlands only existed when the land broadly. Id. at 133. It noted that even wetlands that are not was flooded by adjacent navigable waters at a frequency connected to adjacent bodies of water and are not regularly sufficient to support the growth of aquatic vegetation. United inundated by flooding may still have a connection to States v. Riverside Bayview Homes, Inc., 729 F.2d 391 (6th navigable waters because such water can drain into navigable Cir. 1984). waters. Id. at 134. These adjacent bodies of water can bring pollution to the navigable waters, resulting in possibly This court was largely motivated by Fifth Amendment disastrous effects on the habitat and food chain for the native takings concerns, concluding that the CWA must be read aquatic species. See id. at 134-35. Thus, the Court wrote that narrowly to avoid improper condemnation by the government. A unanimous Supreme Court, however, held that the Tucker the Corps has concluded that wetlands adjacent to lakes, Act, 28 U.S.C. § 1491, provides the owners of condemned rivers, streams, and other bodies of water may function land with the right of compensation and thus concluded that as integral parts of the aquatic environment even when this court was not justified in reading the CWA’s jurisdiction the moisture creating the wetlands does not find its so narrowly. Riverside Bayview, 474 U.S. at 128. Having source in the adjacent bodies of water. . . . [W]e cannot disposed of the Fifth Amendment issue, the Court concluded say that the Corps’ judgment on these matters is that “[t]he plain language of [33 C.F.R. § 323.2(c)] refutes the unreasonable, and we therefore conclude that a definition Court of Appeals’ conclusion that inundation or ‘frequent of “waters of the United States” encompassing all flooding’ by the adjacent body of water is a sine qua non of wetlands adjacent to other bodies of water over which the a wetland under the regulation.” Id. at 129. Corps has jurisdiction is a permissible interpretation of the [CWA]. No. 03-1489 United States v. Rapanos, et al. 11 12 United States v. Rapanos, et al. No. 03-1489

Id. at 135. In doing so, the Court first reaffirmed the holding in Riverside Bayview, pointing out that in Riverside Bayview B. SWANCC we noted that the term “navigable” is of “limited import” After upholding a broad view of the CWA’s jurisdictional and that Congress evidenced its intent to regulate at least reach in Riverside Bayview, a divided Supreme Court some waters that would not be deemed “navigable” under invalidated one of the Corps’ jurisdictional regulations in the classical understanding of that term. But our holding SWANCC. The regulation at issue, known as “the Migratory was based in large measure upon Congress’ unequivocal Bird Rule,” extended the definition of “waters of the United acquiescence to, and approval of, the Corps’ regulations States” to include isolated waters that were used as habitat by interpreting the CWA to cover wetlands adjacent to migratory birds or endangered species. Final Rule for navigable waters. We found that Congress’ concern for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. the protection of water quality and aquatic ecosystems 41206, 41217 (Nov. 13, 1986) (previously codified at indicated its intent to regulate wetlands inseparably 33 C.F.R. § 328.3). The disputed land was a 533 acre parcel bound up with the “waters” of the United States. straddling the Cook and Kane County lines in northern Illinois. The land was owned by the Solid Waste Agency of It was the significant nexus between the wetlands and Northern Cook County, a consortium of 23 Chicago cities that “navigable waters” that informed our reading of the sought to develop a garbage disposal site. SWANCC, 531 CWA in Riverside Bayview Homes. Indeed, we did not U.S. at 162-63. The Corps initially determined that it had no express any opinion on the question of the authority of jurisdiction over the land because it did not contain any the Corps to regulate discharges of fill material into wetlands and did not support “vegetation typically adapted for wetlands that are not adjacent to open bodies of water. life in saturated soil conditions.” Id. at 164 (citing 33 C.F.R. In order to rule for respondents here, we would have to § 328.3(b)). However, after learning that several migratory hold that the jurisdiction of the Corps extends to ponds birds were observed at the site, the Corps asserted jurisdiction that are not adjacent to open water. But we conclude that under the Migratory Bird Rule. Id. the test of the statute will not allow this. The Seventh Circuit concluded that the federal government SWANCC, 531 U.S. at 167-68 (citations omitted) (emphasis had the authority to use the Migratory Bird Rule, relying on in original). the cumulative impact doctrine to conclude that, in toto, the impact on migratory birds from disturbing wholly intrastate, The Court also refused to extend Chevron deference to the non-navigable waters had a substantial impact on interstate Corps’ interpretation of its authority under the CWA. See commerce. Solid Waste Agency of N. Cook County v. United Chevron U.S.A. Inc. v. Natural Resources Defense Council, States Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir. Inc., 467 U.S. 837 (1984). It reasoned that such deference 1999). A majority of the Supreme Court disagreed, however, was inappropriate where the Corps was infringing upon a holding that the Migratory Bird Rule was not supported by power usually reserved to the states, i.e., the authority to Congress’ intent in passing the CWA and thus concluding regulate land and water use. SWANCC, 531 U.S. at 172-74. that it was unnecessary to determine whether the Migratory Therefore, the Court concluded that Congress had not Bird Rule fell within the broadest reach of Congress’ envisioned extending CWA jurisdiction to isolated, intrastate, commerce powers. SWANCC, 531 U.S. at 167. non-navigable “ponds” simply by virtue of the fact that they No. 03-1489 United States v. Rapanos, et al. 13 14 United States v. Rapanos, et al. No. 03-1489 were occasionally the home for migratory birds, despite the CWA’s jurisdiction. Needham, 354 F.3d at 345-46. The Corps’ contrary interpretation of its authority. Id. at 171-72. Needham court disagreed that water exhibiting a hydrological connection with “navigable water” should be considered part C. Putting Riverside Bayview and SWANCC in Context of the “waters of the United States,” instead finding that the water must be “truly adjacent to navigable waters,” or at least The Court in SWANCC noted that even reading the CWA have a “significant measure of proximity” to navigable through a restrictive lens demonstrates that Congress “wanted waters. Id. at 345, 347, n.12. In reaching this conclusion, the to include all waters adjacent to ‘navigable waters,’ such as Fifth Circuit relied heavily on SWANCC, disagreeing with nonnavigable tributaries and streams” in its definition of holdings from the Fourth, Seventh, and Ninth Circuits, as “waters of the United States.” SWANCC, 531 U.S. at 171. well as this court, that have adopted a limited interpretation of Lower courts have disagreed over the extent to which SWANCC. Rapanos, 339 F.3d at 453 (finding that the SWANCC limited Riverside Bayview’s holding. SWANCC SWANCC court merely invalidated the Migratory Bird Rule only specifically addressed the Migratory Bird Rule, and in and did not deal with the Corps’ “adjacent waters” fact specifically held that it was not overruling any aspect of jurisdiction); Treacy, 344 F.3d at 415 (noting that SWANCC Riverside Bayview, yet its language has been seen by some as reaffirmed the holding in Riverside Bayview and did not justification for a wide-ranging reduction of the CWA’s abridge the Corps’ authority over “adjacent waters”); Deaton, jurisdiction. A minority of courts have done so, reading 332 F.3d at 702 (holding that SWANCC did not disavow any SWANCC broadly to limit the CWA to navigable waters and of the Corps’ interpretations of the CWA, save for the non-navigable waters that directly abut navigable waters. In Migratory Bird Rule); Rueth Dev. Co., 335 F.3d at 604 (“it is re Needham, 354 F.3d 340, 345-46 (5th Cir. 2003); FD & P clear that SWANCC did not affect the law regarding the Enterprises, Inc. v. U.S. Army Corps of Engineers, 239 government's alternative asserted basis for jurisdiction F.Supp.2d 509, 516 (D.N.J. 2003). Conversely, the majority adjacency under [the “adjacent water” rule]. The Corps’ of courts have interpreted SWANCC narrowly to hold that adjacency jurisdiction is well-established; it was upheld by while the CWA does not reach isolated waters having no the Supreme Court in [Riverside Bayview], and was connection with navigable waters, it does reach inland waters reaffirmed in SWANCC”); Headwaters, 243 F.3d at 533-34 that share a hydrological connection with navigable waters. (holding that SWANCC did not impact its conclusion that Rapanos, 339 F.3d at 453; Treacy v. Newdunn Assoc., LLP, waters flowing into navigable waters are within the CWA’s 344 F.3d 407, 415 (4th Cir. 2003); United States v. Deaton, jurisdiction); Carabell, 257 F. Supp. 2d at 930 (concluding 332 F.3d 698, 702 (4th Cir. 2003), cert. denied, 124 S.Ct. that SWANCC’s holding was narrow and did not require a 1874 (2004); United States v. Rueth Dev. Co., 335 F.3d 598, body of water to directly abut navigable water in order to fall 604 (7th Cir. 2003), cert. denied, 124 S.Ct. 835 (2003); under the jurisdiction of the CWA); Interstate Gen. Co., 152 Headwaters v. Talent Irrigation District, 243 F.3d 526, 533- F. Supp. 2d at 847 (“[b]ecause the Supreme Court only 34 (9th Cir. 2001); Carabell v. United States Army Corps of reviewed 33 CFR § 328.3(a)(3), it would be improper for this Engineers, 257 F. Supp. 2d 917, 930 (E.D. Mich. 2003); Court to extend the SWANCC Court’s ruling any further than United States v. Interstate Gen. Co., 152 F. Supp. 2d 843, 847 they clearly intended”); but see FD & P Enterprises, 239 F. (D. Md. 2001). Supp. 2d at 516 (“it is the view of this court that the ‘hydrological connection’ test is no longer the valid mode of The Fifth Circuit has adopted the more expansive reading analysis”). of SWANCC and thus the more limited interpretation of the No. 03-1489 United States v. Rapanos, et al. 15 16 United States v. Rapanos, et al. No. 03-1489

In Rapanos’ criminal trial, a panel of this court adopted the What is required for CWA jurisdiction over “adjacent limited reading of SWANCC criticized in Needham. Adopting waters,” however, is a “significant nexus between the the Fourth Circuit’s reasoning in Deaton, this court held that wetlands and ‘navigable waters,’” SWANCC, 531 U.S. at 167, which can be satisfied by the presence of a hydrological because we find the Fourth Circuit’s reasoning connection. Rapanos, 339 F.3d at 453; see also Deaton, 332 persuasive, we disagree with the broad interpretation of F.3d at 711-12 (CWA jurisdiction extends to those waters [SWANCC] taken by the district court in this case and, adjacent to any branch of a tributary system that eventually instead, agree with Deaton. Although the [SWANCC] flows into a navigable water, because these waters effect the opinion limits the application of the Clean Water Act, the water quality of navigable waters and thus there is a Court did not go as far as Rapanos argues, restricting the “substantial nexus” between the tributaries and the navigable Act’s coverage to only wetlands directly abutting waters); Headwaters, 243 F.3d at 533 (“Because the canals navigable water. Instead, the [SWANCC] Court, in a receive water from natural streams and lakes, and divert water narrow holding, invalidated the Migratory Bird Rule as to streams and creeks, they are connected as tributaries to exceeding the authority granted to the [Corps] by the other ‘waters of the United States’”). Waters sharing a [CWA], because it found “nothing approaching a clear hydrological connection are interconnected, sharing a statement from Congress that it intended [the CWA] to symbiotic relationship. As Congress acknowledged when reach an abandoned sand and gravel pit.” passing the CWA, “[w]ater moves in hydrological cycles and it is essential that discharge of pollutants be controlled at the Rapanos, 339 F.3d at 453 (citations omitted). This court source.” Rapanos, 339 F.3d at 451 (citing S.Rep. No. 92-414, further adopted the holding in Deaton, that “adjacent at 77 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3742). waterways” include any branch of a tributary system that eventually flows into a navigable body of water. Rapanos, Unlike the absence of Congressional support for the 339 F.3d at 452-53. This court concluded that the wetlands Migratory Bird Rule discussed in SWANCC, Congress clearly were adjacent because “[a]ny contamination of the Rapanos envisioned that CWA jurisdiction would extend to bodies of wetlands could affect the Drain, which, in turn could affect water exhibiting a hydrological connection to traditional navigable-in-fact waters.” Id. navigable waters. As this court previously recognized Thus, the primary difference between the conclusion [i]n Riverside Bayview the Supreme Court concluded that reached by the Fifth Circuit and that reached by the Fourth, the Corps regulation extending jurisdiction to adjacent Sixth, Seventh, and Ninth Circuits, concerns the “adjacency” wetlands was a reasonable interpretation in part because requirement. The Fifth Circuit requires that the non- of what [SWANCC] described as “the significant nexus navigable water be “truly adjacent to navigable waters” in between the wetlands and ‘navigable waters.’” There is order to qualify for CWA jurisdiction. The majority of also a nexus between a navigable waterway and its courts, including this one, however, construe Riverside nonnavigable tributaries. . . . This nexus, in light of the Bayview and SWANCC to hold that, while a hydrological “breadth of congressional concern for protection of water connection between the non-navigable and navigable waters quality and aquatic ecosystems,” is sufficient to allow the is required, there is no “direct abutment” requirement. Corps to determine reasonably that its jurisdiction over the whole tributary system of any navigable waterway is No. 03-1489 United States v. Rapanos, et al. 17 18 United States v. Rapanos, et al. No. 03-1489

warranted. The regulation, as the Corps reads it, reflects competing interests which Congress itself either a reasonable interpretation of the Clean Water Act. inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration Rapanos, 339 F.3d at 452 (quoting Deaton, 332 F.3d at 712). of the statute in light of everyday realities. D. Chevron Deference When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers The doctrine of “administrative deference,” also known as on the wisdom of the agency’s policy, rather than “Chevron deference,” provides an alternative ground for whether it is a reasonable choice within a gap left open affirming the Corps’ authority over waters adjacent to by Congress, the challenge must fail. In such a case, tributaries of navigable waters. When Congress delegates federal judges -- who have no constituency -- have a duty authority to enforce a statute to a governmental agency, while to respect legitimate policy choices made by those who leaving some ambiguity in how the agency is to enforce the do. The responsibilities for assessing the wisdom of such statute, courts should assume that Congress impliedly policy choices and resolving the struggle between delegated the authority to interpret the ambiguity to the competing views of the public interest are not judicial agency charged with administering the statute. Chevron, 467 ones: Our Constitution vests such responsibilities in the U.S. at 843-45. The agency is thus in the position to “fill the political branches. gaps” left by Congress. Unless the agency’s interpretation of the statute is “arbitrary, unreasonable, or manifestly contrary Id. at 865-66 (citation omitted). Before according deference to the statute,” the agency interpretation should be applied. to agency interpretations, a federal court “need not find that Id. at 843-44. [the agency’s interpretation] is the only permissible construction . . . but only that [its] understanding of this . . . In Chevron, a unanimous Supreme Court pointed out that statute is a sufficiently rational one to preclude a court from deferring to agency interpretations, rather than requiring substituting its judgment for that of [the agency.]” Chem. judicial interpretation, served the interests of democracy, Mfrs. Ass’n v. Natural Resources Defense Council, 470 U.S. noting that 116, 125 (1985) (citation omitted). I n SWANCC the Supreme Court refused to accord Chevron deference to the Judges are not experts in the field, and are not part of Corps’ Migratory Bird Rule. Noting that “where an otherwise either political branch of the Government. Courts must, acceptable construction of a statute would raise serious in some cases, reconcile competing political interests, but constitutional problems, the Court will construe the statute to not on the basis of the judges’ personal policy avoid such problems unless such construction is plainly preferences. In contrast, an agency to which Congress contrary to the intent of Congress,” the Court concluded that has delegated policymaking responsibilities may, within the Migratory Bird Rule infringed on the state’s “traditional the limits of that delegation, properly rely upon the and primary power over land and water use,” and thus was incumbent administration’s views of wise policy to not entitled to Chevron deference. Id. at 173-74 (citation inform its judgments. While agencies are not directly omitted). In Riverside Bayview, however, the Supreme Court accountable to the people, the Chief Executive is, and it accorded Chevron deference to the Corps’ conclusion that is entirely appropriate for this political branch of the “waters of the United States” included wetlands adjacent to Government to make such policy choices -- resolving the navigable waters. 474 U.S. at 134-35. As the SWANCC No. 03-1489 United States v. Rapanos, et al. 19 20 United States v. Rapanos, et al. No. 03-1489

Court recognized, deference was appropriate in Riverside this argument involves a question of law and the factual Bayview given the significant nexus between the adjacent record has been fully developed below. Taft Broadcasting waters and navigable waters that was not present in the Co. v. United States, 929 F.2d 240, 244 (6th Cir. 1991). “nonnavigable, isolated, intrastate ponds” at issue in SWANCC whose only connection to interstate commerce was As discussed supra, Rapanos’ argument regarding the fact that they were occasionally home to migratory birds. SWANCC has previously been adjudicated by this court, in a published disposition, and its conclusion is entitled to stare In Deaton, after conducting a thorough review of the CWA, decisis. See Rapanos, 339 F.3d at 453. Indeed, Rapanos the Fourth Circuit accorded Chevron deference to the Corps’ acknowledged as much during oral arguments. Further, this construction of the CWA that granted it authority over court’s reasoning in that case is supported by the majority of “distant, nonnavigable tributaries of navigable waters.” circuits, by the policy of deferring to agency interpretations, Deaton, 332 F.3d at 709. In Rapanos, this court agreed with and by a careful examination of the relevant Supreme Court the Fourth Circuit’s holding in Deaton. Rapanos, 339 F.3d at cases. There is no “direct abutment” requirement in order to 452-53. Because waters containing a hydrological connection invoke CWA jurisdiction. Non-navigable waters must have to tributaries of navigable waters bear a “significant nexus” to a hydrological connection or some other “significant nexus” navigable waters, as in Riverside Bayview and unlike the to traditional navigable waters in order to invoke CWA waters in SWANCC, Chevron deference is appropriate. The jurisdiction. Unlike the isolated waters in SWANCC, these Corps’ interpretation of “waters of the United States” to waters are interconnected with traditional navigable waters. include those waters adjacent to tributaries of navigable waters, that share a hydrological connection with those Next, the Defendants’ argument that the district court did tributaries, is neither “arbitrary, unreasonable, or manifestly not find that there was a “significant nexus” between the contrary to the statute.” Chevron, 467 U.S. at 843-44. wetlands and the navigable waters is similarly misplaced. The district court found that all three sites contained a E. Application to this Case hydrological connection to navigable waters and thus fell within the jurisdiction of the CWA. Specifically, the district The Defendants argue that this court should impose a court found that “direct abutment” requirement to CWA jurisdiction over nonnavigable water. In response, the United States asserts that the Salzburg wetlands have a surface water connection to the Defendants waived a defense based on SWANCC by not tributaries of the Kawkawlin River which, in turn, flows raising it before the district court. It claims that, while the into the Saginaw River and ultimately into Lake Huron. Defendants argued that the CWA does not extend to “isolated Dr. Willard testified that the wetlands at the Salzburg site waters,” they did not make the current argument that the had a surface connection to the waters of the United CWA does not extend to “wetlands adjacent to nonnavigable States. In 1994, Hal Harrington verified that a surface tributaries.” However, the United States is splitting hairs, as water connection exists between the Salzburg site and this is simply part and parcel of the “isolated waters” Saginaw Bay. argument the Defendants made before the district court. Alternatively, the Defendants’ current claim falls under the Further, Hal Harrington, Chief of the Michigan Department exceptions to the traditional rule that appellate courts will not of Environmental Quality’s Great Lakes Submerged Lands entertain arguments raised for the first time on appeal because Unit, testified that there was a surface water connection No. 03-1489 United States v. Rapanos, et al. 21 22 United States v. Rapanos, et al. No. 03-1489 between the Salzburg site and the Saginaw Bay. In 1994 he However, Charlie Dodgers testified that surface runoff visited the site. During this visit, he observed carp spawning occurred naturally “at least seasonally,” and one of the United in a roadside stream on the north side of the property. He States’ exhibits demonstrated surface connections to the Rose followed the flow of the water and “each road crossing with drain as early as 1975. this surface water connection to Saginaw where it entered . . . the river entering Saginaw Bay north of the Bay City State Regarding the Pine River site, the district court noted that Park [the Kawkawlin River].” An expert for Rapanos, Dr. “Dr. Willard testified that the wetlands at the Pine River site Straw, testified that water left the site through the Hoppler have a surface water connection to the Pine River, which Drain, which drains into the Hoppler Creek. This drain is flows into Lake Huron.” The maps utilized by the United immediately north of the Salzburg site.3 States showed that areas of wetlands on the site were in close proximity to the Pine River (although they did not delineate Regarding the Hines Road site, the district court noted that the specific paths these wetlands would have taken to drain into the river). Dr. Willard testified that the wetlands at the Hines Road site have a surface water connection to the Rose Drain Although the Defendants claim that the evidence did not which, in turn, has a surface water connection to the support these conclusions, the record demonstrates that there Tittabawassee River. Dr. Willard also described the were hydrological connections between all three sites and nature of the surface water connection between the corresponding adjacent tributaries of navigable waters. See wetlands at Hines Road and the Rose Drain. In October Rapanos, 339 F.3d at 453 (“Because the wetlands are adjacent 1994, Dodgers and Zbiciak . . . demonstrated that the to the Drain and there exists a hydrological connection among interior wetlands have a hydrologic connection with the the wetlands, the Drain, and the Kawkawlin River, we find an Rose Drain. ample nexus to establish jurisdiction.”). Moreover, the Defendants are certainly unable to show that the district In addition, Mr. Zbiciak, a representative from the State of court’s conclusions were clearly erroneous. Pledger, 236 Michigan, testified that the wetlands drained into the Rose F.3d at 320. The district court was in a far superior position Drain, which runs along the western side of the site and flows to judge the complicated facts of this case after presiding over down to the Tittabawassee River. A report by Charlie the lengthy proceedings and the bench trial. Further, Dodgers, another representative of the State of Michigan, indicated that the site inspection revealed five locations where [t]he rationale for deference to the original finder of fact water moved into the Rose Drain, as he testified at trial. is not limited to the superiority of the trial judge’s Rapanos claims that ditches he dug in 1992 were the only position to make determinations of credibility. The trial cause of a surface water connection to the Rose drain. judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of 3 In Rapanos’ criminal case, this court held that the evidence appeals would very likely contribute only negligibly to demonstrated that “the wetlands on Rapanos’s land are adjacent to the the accuracy of fact determination at a huge cost in Labozinski Drain . . .” and noted that contamination of that drain “could diversion of judicial resources. In addition, the parties to affect navigable-in-fact waters.” Rapanos, 339 F.3d at 453 (discussing a a case on appeal have already been forced to concentrate slightly different parcel of land). The Labozinski Drain discussed in the their energies and resources on persuading the trial judge criminal case drains into the Hoppler Drain. No. 03-1489 United States v. Rapanos, et al. 23 24 United States v. Rapanos, et al. No. 03-1489

that their account of the facts is the correct one; requiring aerial photography, Dr. Willard revised his wetlands maps, them to persuade three more judges at the appellate level removing some of the areas he had previously marked as is requiring too much. As the Court has stated in a wetlands. He did so to be “as conservative and as accurate as different context, the trial on the merits should be “the [he] could.” The new maps were produced in conjunction ‘main event’ . . . rather than a “tryout on the road.’” with Will Bowman, a soils scientist with the Natural Wainwright v. Sykes, 433 U.S. 72, 90 (1977). For these Resources Conservation Service of the U. S. Department of reasons, review of factual findings under the clearly- Agriculture, and were known as the “Bowman Supplemental erroneous standard -- with its deference to the trier of fact Soils Maps.” Accompanying the new maps was a five-page -- is the rule, not the exception. supplemental report. The Defendants contend that this late report “made a mockery of the Federal Rules of Civil Anderson, 470 U.S. at 574-75. The testimony and evidence Procedure,” specifically complaining that the disclosure rules in the record support the district court’s findings. Its specified in Rule 26 were violated. They claim that the conclusions of fact are entitled to substantial deference and district court’s denial of their motion for Rule 37 sanctions, they are not “clearly erroneous.” based on the failure to disclose, requires remand for a new trial. The Defendants also argue that the district court was required to make “subsidiary findings” to support its The United States points out that the new maps were based conclusion that the sites had a hydrological connection to on analysis from the Defendants’ experts contained in the navigable waters, citing Deal v. Cincinnati Bd. of Educ., 369 Pierce report. The version of Rule 26(e) in effect at the time F.2d 55 (6th Cir. 1966). To the contrary, the district court’s of the trial provided that a party was required to supplement opinion, along with the expert testimony regarding the its disclosures “if the information disclosed is incomplete or hydrological connection, provides a sufficient basis to incorrect and if the additional or corrective information has examine the district court’s findings and supports the not otherwise been made known to the other parties during determination that its conclusions were not clearly erroneous. the discovery process.” The data used in the supplemental report and maps was known to the Defendants, as it was II. Dr. Willard’s Testimony produced by their experts. Because Dr. Willard’s previous expert report and maps were available to the Defendants, it At trial, the United States offered the expert testimony of seems unlikely that simply incorporating some of the data Dr. Daniel E. Willard. The district court found Dr. Willard to from the Defendants’ own experts, which reduced the be “eminently qualified” as an expert in wetlands and computation of wetland areas, qualifies under Rule 26’s concluded that his testimony was “highly credible.” The mandatory disclosure requirements. Defendants argue that this testimony should have been stricken, or the trial delayed, because Dr. Willard relied upon Even if we assume that the United States was required to a supplemental expert witness report that was not disclosed disclose the supplemental results, exclusion of the report and until after trial was underway. testimony was not the only remedy available to the district court. Rule 37(c) provides sanctions for the failure to comply Dr. Willard revised the map he prepared for trial with Rule 26, including exclusion of evidence. This court delineating the areas of wetland on the Rapanos’ land. After reviews for abuse of discretion a district court’s ruling on a examining the soil analysis from the Defendants’ expert and motion to exclude an expert witness as a sanction under Rule No. 03-1489 United States v. Rapanos, et al. 25 26 United States v. Rapanos, et al. No. 03-1489

37 of the Federal Rules of Civil Procedure. Roberts ex rel. Government’s expert witness case, I would certainly give Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th the defense as much reasonable time as they need in Cir. 2003); Toth v. Grand Trunk Railroad, 306 F.3d 335, 344 order to consult with their experts. I would be more than (6th Cir. 2002). Rule 37 provides that the trial judge should happy to . . . so that your expert can be prepared without not exclude expert testimony unless the failure to disclose is having to order transcripts and so forth, have him or her both unjustified and harmful. Roberts, 325 F.3d at 782; Fed. on a phone conference so that they can hear all that R.Civ. P. 37(c)(1) 2000 advisory committee’s notes (“Even if testimony . . . so that you can be prepared and also take the failure [to disclose] was not substantially justified, a party some time and recess for as long as you need in order to should be allowed to use the material that was not disclosed consult with your expert for cross-examination and if it if the lack of earlier notice was harmless.”). The non- entails taking whatever time it takes reasonably to be disclosing party bears the burden of proving that a disclosure prepared. But I think that we’re here to seek the truth, was harmless. Roberts, 325 F.3d at 782. The aggrieved and that’s -- that’s the whole idea of having a trial is to party, however, must show substantial prejudice before this seek the truth. It’s not . . . to ambush and everybody court will grant a new trial based on an alleged Rule 26(e) should be prepared. . . . But I have to, I think, listen to disclosure error. Toth, 306 F.3d at 344. the testimony to see what really transpired here with the understanding that we’re here to seek the truth and that In this case, the failure to disclose seems harmless as the I will give the defense as much opportunity as they need Defendants were aware of the data used in the supplemental since it’s a bench trial and we can take time, and it’s reports and the revised reports reduced the amount of important, but not that important that you shouldn’t have wetlands found to exist at the sites. Thus, the only changes an opportunity to be able to use your right to cross- made between the original disclosed report and the examine, to seek the truth. supplemental report were beneficial to the Defendants. In summary, no “substantial prejudice” has been demonstrated. The district court properly considered the role of the trial, the rights of the parties, and the considerations of the Federal Even if a trial court determines that Rule 26 has been Rules of Civil Procedure in this side-bar. violated, Rule 37 does not mandate exclusion of evidence. Roberts, 325 F.3d at 783-84 (Rule 37(c)(1) “provides several The Federal Rules of Civil Procedure are not so monolithic remedies to a district judge who is faced with violations of the as to demand a single outcome for the widely varying mandatory-disclosure provisions of Rule 26. The provision circumstances encountered in discovery and trial. They on sanctions explicitly states in pertinent part that ‘in lieu of properly recognize the discretion of the trial court to fashion this sanction [of total exclusion], the court, on motion and appropriate remedies, taking into account the facts of the case. after affording an opportunity to be heard, may impose other This case languished for more than five years between the appropriate sanctions.’”). The district court, after noting its filing of the Complaint and the 13-day bench trial. It concern with the failure to disclose the supplemental report, involved complicated factual and legal issues. It was within concluded that the district court’s discretion to allow the evidence and it significantly allayed any fears of undue surprise by granting the defense should be accommodated and [I] will do so the Defendants “as long as they needed” to review Dr. in several ways, [at] the option totally of the defense. Willard’s supplemental report so that they could discuss it Number one is that at the conclusion of the with their experts. No. 03-1489 United States v. Rapanos, et al. 27 28 United States v. Rapanos, et al. No. 03-1489

Finally, Dr. Willard notified the Defendants during his resources of the state. Id. § 324.30301(p)(ii). This five-acre deposition a few weeks before trial that he was in the process jurisdictional limitation is not found in the CWA or the Code of amending his findings based upon the Pierce report. The of Federal Regulations. The Defendants argue that it was Defendants apparently did not object to this until Dr. Willard error for the district court not to make findings of fact testified and they never made a motion pursuant to Rule regarding the Michigan statute’s five-acre limitation, instead 37(a)(2)(A) to compel discovery. In Roberts, this court noted focusing solely on the federal regulations. that such inaction by the “surprised” party suggests that the failure to disclose should be considered harmless or justified. While the CWA grants states the authority to establish their Roberts, 325 F.3d at 783. own clean water regulations, Congress clearly intended for any state program to be at least as broad as the federal Considering all of the circumstances in this complicated program. See 33 U.S.C. § 1344(h)(1)(A)-(B). The Geomare- case, the district court’s failure to exclude Dr. Willard’s Anderson Wetlands Protection Act is a state statute separate supplemental reports cannot be said to be an “abuse of from the CWA. The CWA’s provision for state involvement discretion” and its solution for the disclosure problem was in issuing CWA permits does not delegate authority to the entirely appropriate. state to alter application of the CWA and the Corps specifically notes that “[a]ny approved State Program shall, III. The Michigan Wetlands Program at all times, be conducted in accordance with the requirements of the Act and of this part. While States may impose more The CWA permits states to develop their own water stringent requirements, they may not impose any less protection permit program to enforce the provisions of the stringent requirements for any purpose.” 40 C.F.R. CWA. 33 U.S.C. § 1344(g). This partial delegation § 233.1(d). Moreover, contrary to the Appellant’s assertions, provision “gives a state the authority to render a permitting a state to issue CWA permits does not foreclose all comprehensive federal/state wetland permit decision with the federal issuance of CWA permits. See Michigan Peat, 175 federal government playing the role of the overseer in the F.3d at 427 (a case in which the Corps had ultimate authority consideration of permit applications.” Michigan Peat v. to issue permit when state permit did not address the concerns United States Envtl. Prot. Agency, 175 F.3d 422, 424 (6th of the federal government); 33 U.S.C. § 1344(g)(1) (Corps Cir.1999). Michigan, along with New Jersey, has established still issues permits for waters used in interstate commerce, such a permitting program. 40 C.F.R. §§ 233.70-233.71. including adjacent wetlands). The Defendants claim that Michigan’s permitting The CWA explicitly provides that, notwithstanding the regulations contain slight variations to the federal statutes. In delegation of authority to the states, nothing in Section 1344 particular, they cite Michigan’s Geomare-Anderson Wetlands is meant to restrict the Corps’ authority to enforce the CWA. Protection Act, which has language defining wetlands that 33 U.S.C. § 1344(n). This court has recognized that Section differ somewhat from the Corps’ regulations. Mich. Comp. 1344(n) allows the federal government to pursue an action Laws § 324.30301(p). Those wetlands that are not against an offender regardless of whether the state has contiguous to the Great Lakes, an inland lake or pond, or a instituted its own enforcement program, noting that under river or stream, and less than five acres in size, are not subject “the CWA . . . the responsible federal agency retains to Michigan’s Wetlands Protection Act, unless it is certified oversight power to ensure compliance with federal that the area’s preservation is necessary to protect the natural standards.” S. Ohio Coal Co. v. Office of Surface Mining, No. 03-1489 United States v. Rapanos, et al. 29 30 United States v. Rapanos, et al. No. 03-1489

Reclamation and Enforcement, 20 F.3d 1418, 1427-28 (6th matter for a number of reasons. First, it is quite Cir. 1994); see also United States v. City of Rock Island, 182 conceivable that a lake under 5 acres would have an F. Supp. 2d 690, 693-94 (C.D. Ill. 2001); United States v. affect on interstate commerce so as to imbue it with the Town of Lowell, 637 F. Supp. 254, 257 (N.D. Ind. 1985). The distinction of being “water of the United States” and thus CWA does not contain any language suggesting that state subject to the federal permit program. implementation of the CWA is “in lieu of” federal enforcement and thus any delegation of authority to the state Thus, Michigan’s permitting program properly recognized in the CWA does not end a citizen’s responsibility to abide by that a site not falling within the ambit of Michigan’s state the federal laws and regulations. Cf. United States v. City of program could still be within the jurisdiction of the federal Youngstown, 109 F. Supp. 2d 739, 741 (N.D. Ohio 2000). program. In short, there is nothing in the CWA to suggest that by IV. Collateral Estoppel allowing Michigan to enforce portions of the CWA, the Corps was delegating the authority to the state to determine the The district court found that Mr. Rapanos should be limitations on CWA jurisdiction. Michigan does not gain the collaterally estopped from denying liability at the Salzburg authority to alter the CWA’s federal jurisdiction merely by site based on the outcome in the criminal case. Both parties virtue of the fact that it is entitled to administer some portions note the confusion from relying upon collateral estoppel in of the act. In fact, the statute and the accompanying this case because (1) the “Salzburg site” referenced in the regulations make it clear that state enforcement programs criminal trial is not completely analogous to the Salzburg site cannot act to weaken the CWA. in this case and (2) when the district court entered its findings of fact in 2000, Rapanos had been convicted in his trial and Finally, it should be noted that the Corps retains the sentenced, but his appeal was pending, yet when the district ultimate authority to deny a CWA permit, even if Michigan court entered its final judgment in February 2003, Rapanos’ is inclined to grant one under its delegation of authority. conviction had been vacated by the criminal trial court and Michigan’s Administration of Section 404 at 2 (available at the United States’ appeal to this court was pending. The http://www.deq.state.mi.us/documents/deq-lwm-wetlands-4 United States notes the difficulty inherent in relying upon 04admin.pdf); see also Michigan Peat, 175 F.3d at 427 collateral estoppel when an appeal is pending. (Michigan failed to issue a permit satisfying the federal government’s reservations so the Corps retained the sole Regardless, the district court’s conclusion regarding authority to authorize the issuance of a permit). In certifying collateral estoppel was not necessary for its finding that the Michigan’s 404 permitting scheme, Michigan’s Attorney Defendants were responsible for CWA violations at the General wrote that Salzburg site. As discussed supra, the district court concluded that the Defendants had discharged fill into the [t]he Water Resources Commission Act governing Salzburg site and that the Salzburg site was subject to CWA discharge of pollutants into water of this state includes jurisdiction. A judge may rely upon multiple alternative, but within its ambit all waters of the State of Michigan. It is, independent rationales for his decision. See Nat’l Satellite of course, clear that the . . . Wetlands Act exclude from Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 909-10 (6th Cir. their purview certain lakes having an area of less than 5 2001) (discussing the effects on collateral estoppel when a acres. Even this problem is, in fact, of no practical decision is based upon two alternative, but independent No. 03-1489 United States v. Rapanos, et al. 31 rationales). In this case, it is unnecessary to determine whether collateral estoppel was appropriate because the district court provided alternate rationales for its findings. V. The Extent of Unauthorized Filling Finally, the Defendants contend that substantial evidence did not support the district court’s finding that 54 acres of wetlands were illegally filled. They claim that some of the fill used in the district court’s calculation was “incidental fallback.” The district court concluded that the illegal fill was substantial (covering 54 acres) and not the result of incidental fallback after examining the evidence and hearing the relevant testimony. This conclusion is supported by the evidence and is not clearly erroneous. CONCLUSION We AFFIRM the judgment of the district court.